Supreme Court sides with cable, satellite companies on fee system

The CRTC does not have the power to make cable providers pay broadcasters for carrying their TV signals, a decision handed down Thursday by the Supreme Court of Canada that one analyst said should be a win for consumers.

While the decision was hailed by one major cable company as a step forward for customers, broadcasters said the very survival of local TV is at stake.

The Supreme Court ruled in a 5-4 decision that setting up such a system is not within the scope of the Canadian Radio-television and Telecommunications Commission. In doing so, the justices overturned an earlier Federal Court of Appeal decision.

The Broadcasting Act can’t be interpreted to give the CRTC that power, Justice Marshall Rothstein wrote for the majority.

“First, a contextual reading of the provisions of the Broadcasting Act themselves reveals that they were not meant to authorize the CRTC to create exclusive rights for broadcasters to control the exploitation of their signals or works by retransmission,” Rothstein wrote.

“Second, the proposed regime would conflict with specific provisions enacted by Parliament in the Copyright Act.”

Telecom analyst Troy Crandall said at this point it’s the status quo for consumers, who won’t have to bear any costs of a fee-for-carriage system.

“It looks like a win for consumers right now because it’s not going to have an immediate impact,” said Crandall of MacDougall, MacDougall & MacTier in Montreal.

Traditional broadcasters will have to find other ways to raise revenues, supplement advertising and support local programming. If the Supreme Court would have agreed to allow traditional broadcasters to charge such fees, a basic cable subscriber would have seen his bill go up, he added.

“Now, it probably won’t because the majority of your channels won’t be allowed to have fee for carriage.”

In their dissent, Justices Rosalie Abella and Thomas Cromwell argued that seeking a system that would be beneficial to local television stations was well within the mandate of the CRTC.

“As an expert body, the CRTC, not the courts, is in the best position to decide what measures are necessary to save local stations from going bankrupt,” they wrote.

The CRTC had decided in 2010 to launch what’s known as a value-for-signal system as a response to a changing broadcasting landscape that saw local broadcasters struggling for revenue.